Tomal v. Anderson

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
DEWAYNE TOMAL, )
) Supreme Court Nos. S-16720/16760
Appellant and )
Cross-Appellee, ) Superior Court No. 1WR-16-00034 CI
)
v. ) OPINION
)
JEANNETTE ANDERSON, ) No. 7282 – August 31, 2018
)
Appellee and )
Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Wrangell, Kevin G. Miller, Judge pro tem.
Appearances: Robert S. Spitzfaden, Gruening & Spitzfaden,
APC, Juneau, for Appellant/Cross-Appellee. Michael P.
Nash, Law Offices of Michael P. Nash, P.C., Wrangell, for
Appellee/Cross-Appellant.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
Alaska has long recognized unique legal standards for property disputes
between two people ending a domestic partnership. Our case law has treated the end of
a domestic partnership as coextensive with both the end of a marriage-like relationship
and the end of the partners’ cohabitation, as has generally been the case in the appeals
we have decided. But this appeal presents the novel factual circumstance of a couple
who continued living together after their marriage-like relationship ended. We must
therefore clarify several aspects of our domestic partnership case law to decide this
appeal, including when and how a domestic partnership terminates, when post-
partnership payments must be reimbursed, and how the trial court should award
attorney’s fees. Applying these clarified standards, we conclude that most of the trial
court’s property distribution was correct but that some minor aspects were in error. We
therefore remand for the trial court to revise its property division.
II. FACTS AND PROCEEDINGS
DeWayne Tomal and Jeanette Anderson began living together in Wrangell
in 1998. The following year Tomal bought beachfront land off the Zimovia highway
(the Zimovia property); they began working to make it their permanent home. Anderson
initially worked full time making the property habitable but later was sporadically
employed, while Tomal sometimes worked on the property and sometimes earned money
from other employment. The couple eventually restored a cabin on the property to serve
as their primary home; they also docked Anderson’s float house at the beach.
Tomal began experiencing financial difficulties shortly after he and
Anderson began living at the Zimovia property. They took out a loan secured by the
property to pay some of his debts, and Tomal granted the property to himself and
Anderson as tenants-in-common to secure financing. Anderson then took over managing
the couple’s finances; her practice was to transfer money from the couple’s joint bank
account into her personal savings account, where the funds earned interest, then back
into the joint account to pay bills. Tomal and Anderson each deposited their earnings
into the joint account and Anderson used the commingled funds to pay joint expenses
like the mortgage, credit cards, and utilities.
Tomal took a salaried construction job in 2005; he began accruing a
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pension and continued contributing his earnings to the joint account. His work required
him to live away from the Zimovia property during the construction season, usually from
March to November. Anderson continued living and working at the property.
In July 2011 Tomal returned to the property during the construction season
and discovered Anderson’s money transfers from their joint account to her personal
account. Tomal confronted Anderson and asked her not to transfer money into her
personal account. Tomal then opened a separate bank account and began transferring
money from the joint account into his separate account. Tomal also began depositing his
earnings into and paying bills from the separate account. By the end of 2011 there was
little money left in the joint account.
Early in 2012 Anderson told Tomal that she would no longer sleep in the
same house as him. When Tomal returned from his seasonal construction work in the
following winters, Anderson slept in the float house while he was home. Anderson
remained in the cabin in 2015, after living in the float house in the winter became too
difficult to manage. The parties cooked their own meals, did their own laundry, and
engaged in separate employment while living in the same home.
Anderson obtained counsel in 2015 and proposed partitioning the Zimovia
property. Tomal did not agree to the partition. Tomal filed suit against Anderson in
2016; he claimed that she was liable for her share of the Zimovia property expenses he
had been paying and for unauthorized expenditures she had made with his earnings and
credit card. Anderson denied making any unauthorized expenditures with Tomal’s
money and counterclaimed for a domestic partnership property division.
The superior court held a three-day bench trial in February and March
2017. Tomal and Anderson both testified about their relationship, living arrangements,
finances, and property. Tomal also presented testimony from a pension-valuation expert
setting three different values for his pension based on when the relationship might have
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terminated, an accounting expert who analyzed the couple’s financial transactions, and
a real estate appraisal expert who valued the Zimovia property.
The court issued a written decision in April dividing the property. The
court found that Tomal had not proved his misappropriation claims and that the parties
were in a domestic partnership requiring equal division of property. The court found that
the domestic partnership terminated in 2012, when Anderson told Tomal she no longer
would sleep in the same house as him. The court also resolved various valuation
disputes and included about $50,000 of Tomal’s pension as partnership property. The
court awarded Tomal the Zimovia property, valued at $275,000, and ordered him to
make Anderson an equalization payment of a little less than $100,000. The court
declined to credit Tomal for post-separation property expense payments, reasoning that
“as cotenants, [the parties] continued to both contribute to the household in roughly equal
fashion with . . . Tomal making the necessary payments to maintain the household and
. . . Anderson doing other regular maintenance and upkeep.”
Tomal sought reconsideration of the denial of post-separation expenses, and
he sought prevailing party attorney’s fees and costs.1 Anderson asked that the court
amend its judgment to grant her the Zimovia property, and she sought to enjoin Tomal
from entering the property, citing a fear of domestic violence. Anderson attached a
police report to support the reasonableness of her fear, which Tomal moved to strike as
hearsay. Anderson also sought attorney’s fees and litigation costs.
The court denied Tomal’s reconsideration motion and Anderson’s motions
to amend the judgment and for a preliminary injunction. The court admitted the police
report as evidence but excluded the hearsay statements it contained, except for one
1
See Alaska R. Civ. P. 82(a) (“Except as otherwise provided by law or
agreed by the parties, the prevailing party in a civil case shall be awarded attorney’s fees
calculated under this rule.”).
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statement by a police officer. The court declined to award Tomal prevailing party
attorney’s fees, reasoning that the “divorce exception” applied.2 The court instead
awarded Anderson just over $500 in litigation costs in light of her “relative economic
disadvantage” and nothing in attorney’s fees because she did not provide sufficient
factual support for an award.
Both parties appeal.
III. DISCUSSION
This appeal presents several novel issues of domestic partnership law.
Anderson appeals the trial court’s finding that the parties’ domestic partnership
terminated in 2012, requiring us to clarify when a domestic partnership terminates.
Tomal appeals several of the court’s rulings, requiring us to clarify when credit for post-
separation property expense payments is appropriate and when the divorce exception to
prevailing party attorney’s fees applies to domestic partners. Both parties challenge
aspects of the court’s property distribution, requiring us to clarify both the appropriate
legal standards for domestic partnership property distribution and the standards of review
we will apply on appeal in such cases. We therefore begin by explaining the standards
courts must use to divide property acquired during a domestic partnership, and how we
2
See Sanders v. Barth, 12 P.3d 766, 768 (Alaska 2000) (“[Alaska] Civil
Rule 82 authorizes awards of partial attorney’s fees to prevailing parties in most civil
litigation. . . . However, divorce cases represent a well-established exception to this
general rule. Attorney’s fees in divorce cases are ‘based on the relative economic
situations and earning powers of the parties,’ rather than prevailing party status. This
rule ensures that ‘both spouses have the proper means to litigate the divorce action on
a fairly equal plane.’ ” (footnote omitted) (first quoting Kowalski v. Kowalski, 806 P.2d
1368, 1372 (Alaska 1991); then quoting Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192
(Alaska 1987))).
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will review that decision-making on appeal, before addressing the parties’ arguments.3
A. Legal Standards For Domestic Partnership Property Distribution4
3
Tomal also argues that it was error to admit the police officer’s statement
in Anderson’s proffered police report. But the police report was offered by Anderson
to support her claim for post-decision relief, and the trial court denied that relief. Tomal
has offered no reason that the police report has, or possibly could have, prejudiced him,
so we do not reach this argument. See Janes v. Alaska Railbelt Marine, LLC, 309 P.3d
867, 875 (Alaska 2013) (“We will only reverse evidentiary rulings that are both
erroneous and prejudicial.” (emphasis added)).
4
We note that this analysis is applicable only to domestic partners, i.e.,
unmarried cohabitants living in a marriage-like relationship. See Boulds v. Nielsen, 323
P.3d 58, 60 (Alaska 2014) (parties were unmarried cohabitants); Reed v. Parrish, 286
P.3d 1054, 1057 (Alaska 2012) (same); Jaymot v. Skillings-Donat, 216 P.3d 534, 544
(Alaska 2009) (same); Bishop v. Clark, 54 P.3d 804, 807 (Alaska 2002) (same); Tolan
v. Kimball, 33 P.3d 1152, 1153 (Alaska 2001) (same); D.M. v. D.A., 885 P.2d 94, 95, 97
(Alaska 1994) (same); Wood v. Collins, 812 P.2d 951, 953 (Alaska 1991) (same); see
also AS 24.60.990(a)(5) (“In this chapter [regarding the legislature and lobbying] . . .
‘domestic partner’ means a person who is cohabiting with another person in a
relationship that is like a marriage but that is not a legal marriage . . . .”);
AS 39.50.200(a)(4) (“In this chapter [regarding public officers and employees] . . .
‘domestic partner’ means a person who is cohabiting with another person in a
relationship that is like a marriage but that is not a legal marriage . . . .”); cf. Timothy W.
v. Julia M., 403 P.3d 1095, 1114 (Alaska 2017) (explaining that “domestic living
partner” as used in Alaska Statutes Title 25, including AS 25.20.095(g),
AS 25.20.110(g), and AS 25.24.150(g), encompasses individuals in “a shared, marriage-
like, domestic environment”). Domestic partnership property division law is
inapplicable to the equitable division of marital assets, which is governed by statute. See
Murray v. Murray, 788 P.2d 41, 42 n.6 (Alaska 1990); see also AS 25.24.160(a)(4).
Domestic partnership property division law is also inapplicable to property disputes
between unmarried parties not in a domestic partnership, which is governed by the
ordinary rules of property law. See D.M., 885 P.2d at 97. If the parties dispute whether
a domestic partnership exists, or when their partnership began, the trial court must
examine if or when the parties cohabited in a marriage-like relationship before applying
these standards. The eight factors we articulated in Bishop may help inform this analysis,
54 P.3d at 811, but they are not exclusive, Reed, 286 P.3d at 1058.
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Property acquired by domestic partners during a domestic partnership
should be distributed according to the partners’ intent.5 But property acquired after the
partnership terminates is governed by the ordinary rules of Alaska property law.6 The
first step in distributing domestic partnership property therefore is to assess when the
partnership began and ended. Relevant to this appeal, when a domestic partnership ends
is a question of fact; the trial court must assess when the partners stopped cohabiting in
a marriage-like relationship.7 We will review the trial court’s finding of when a domestic
partnership ended for clear error.8
The second step is to classify each item of property held by the parties as
partnership property or separate property based on applicable law. A statute or a valid
contract between the parties — express or implied — will control the classification in the
5
Boulds, 323 P.3d at 63.
6
See Wood, 812 P.2d at 958 (“We hold that the rules of cotenancy apply
after separation when the parties no longer were maintaining a domestic relationship.”).
In Wood and D.M. we grounded the intent analysis in cotenancy. D.M., 885 P.2d at 97
& n.7; Wood, 812 P.2d at 958. But we clarified in Tolan that domestic partnerships do
not require cotenant property interests. 33 P.3d at 1155-56. It is therefore more accurate
to say that the ordinary property rules as a whole apply after separation, rather than only
“the rules of cotenancy.” See Wood, 812 P.2d at 958.
7
See supra note 4 (clarifying that a domestic partnership in Alaska for
property division purposes is a marriage-like relationship between unmarried
cohabitants). A legal question may arise, however, if, as in this case, the parties dispute
what a domestic partnership is. See discussion infra at p. 12.
8
We will find clear error only if “we are left with a definite and firm
conviction on the entire record that a mistake has been made.” Wood, 812 P.2d at 954
n.2 (quoting Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979)).
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first instance.9 But absent a controlling statute or a valid contract between the parties,
property must be classified strictly according to the parties’ intent.10 “In some cases, the
parties’ intent with respect to all or broad classes of property will be easy to infer based
on evidence that ‘the parties formed a domestic partnership and intended to share in the
fruits of their relationship as though married justifying an equal division of their
property.’ ”11 But not all property acquired during a partnership necessarily is intended
to be partnership property: “We emphasize that simply living together is not sufficient
to demonstrate intent to share property as though married, and, moreover, that parties
who intend to share some property do not presumptively intend to share all property
. . . .”12 And parties may not intend to share property equally; for instance, a couple who
purchase real property together may intend to share it according to their respective
investments.13 The trial court must be attentive to ensure that it properly determines the
parties’ intent for each disputed property item. The trial court’s underlying findings as
9
See Boulds, 323 P.3d at 61-63 (applying federal Employee Retirement
Income Security Act to domestic partnership property distribution before applying intent
analysis); Bishop, 54 P.3d at 808-10 (applying parties’ property settlement agreements
before applying intent analysis); see also Marvin v. Marvin, 557 P.2d 106, 113 (Cal.
1976) (“The fact that a man and woman live together without marriage, and engage in
a sexual relationship, does not in itself invalidate agreements between them relating to
their earnings, property, or expenses.”).
10
See Boulds, 323 P.3d at 63 (“[I]f an intent can be found, it should control
that property distribution.” (quoting Bishop, 54 P.3d at 811)).
11
Id. at 64 (quoting Reed v. Parrish, 286 P.3d 1054, 1057 (Alaska 2012)).
12
Id.13
See D.M. v. D.A., 885 P.2d 94, 97 (Alaska 1994) (“If an intent to hold the
property in a particular proportion or to determine the proportion by a particular method
can be discovered, this intent controls . . . .”).
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to the parties’ intent are factual findings reviewed for clear error.14 The trial court’s
classification decisions based on statute, contract, or intent are applications of law to fact
reviewed de novo.15
The third step is to value the property. The trial court’s property valuations
are factual findings reviewed for clear error.16
The final step is to distribute the property. Unlike in a divorce, where
equitable considerations dictate the final distribution, the trial court must distribute the
property strictly according to the property’s character as determined by statute, contract,
14
See Wood v. Collins, 812 P.2d 951, 957 (Alaska 1991) (“[W]e accept the
superior court’s finding that [the partner] ‘was to pay the vast majority of the upkeep, the
mortgage, and other payments.’ ” (emphasis added)); cf. Abood v. Abood, 119 P.3d 980,
984 (Alaska 2005) (“[A] finding that the parties intended to treat property as marital will
be disturbed only if it is clearly erroneous.” (citing Cox v. Cox, 882 P.2d 909, 913
(Alaska 1994))).
15
See Wood, 812 P.2d at 955 n.4 (“Applying the law to a given set of facts
is a question of law subject to de novo review.”). We note that we have previously
framed this analysis as a de novo review without specifying that the underlying
determination of the parties’ intent is a factual question, which could be interpreted as
reviewing what the parties intended de novo as a question of law. See Boulds, 323 P.3d
at 61 n.3 (“We determine the parties’ intent by applying law to facts, a de novo
review.”); Bishop, 54 P.3d at 810-11 (“We treat the court’s decision as finding that these
cohabiting parties impliedly agreed to the distribution of property accumulated during
cohabitation. . . . We review [this finding] de novo.”). That is incorrect; as we explain
today, the correct rule is that what the parties intended is a question of fact, and the legal
significance of that intent is a question of law. To the extent Bishop and cases citing it
have reviewed parties’ intent de novo, those cases are disavowed.
16
See D.M., 885 P.2d at 98 n.8 (“The value of the horses [belonging to the
partnership] is a factual finding which may be reversed only if clearly erroneous.” (citing
Alaska R. Civ. P. 52(a))); cf. Beals v. Beals, 303 P.3d 453, 459 (Alaska 2013)
(explaining in the analogous divorce context that “valuation of assets . . . is a factual
determination that we review for clear error”).
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or the parties’ intent.17 Partnership property generally must be distributed equally (or
unequally if the parties intended unequal shares), while separate property must be
distributed solely to its owner.18 But the trial court may assign different items of
partnership property to the parties and order an equalization payment to ensure that each
party receives the correct total share of partnership property.19 There may be a number
of reasonable ways to fairly allocate property in this process; we will review the trial
court’s allocation decisions, and its decision to order an equalization payment, for abuse
of discretion.20
17
See Boulds, 323 P.3d at 63; see also Bishop, 54 P.3d at 812 (“It was error
to apply divorce law to divide the parties’ property. . . . [T]he property the couple
accumulated must be divided in accordance with their intentions.”).
18
See Boulds, 323 P.3d at 63-64 (affirming equal property distribution
because parties intended property to be partnership asset). We note that in the analogous
divorce context the trial court may “invade” separate property to ensure equitable
division. See Odom v. Odom, 141 P.3d 324, 340 (Alaska 2006). This procedure may
be improper for domestic partners because the parties’ intent, rather than equity, controls
the property distribution. But the trial court here did not distribute any separate property
from one party to another, so we do not yet have to decide whether such invasion ever
could be appropriate.
19
See Boulds, 323 P.3d at 65 n.37 (“[T]he court may require an equalization
payment . . . .”); Bishop, 54 P.3d at 811 (“[I]t was not error to award [a partner] a one-
half interest in the disputed property not allocated by the 1996 settlement agreement —
i.e., the furniture and appliances in the East Hill Road cabin and the proceeds from the
sale of the Mountain View lot.”).
20
Cf. Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011) (“[T]he ‘abuse
of discretion’ standard of review applies to situations where the law allows or requires
the judge to exercise discretion — to reach a decision by considering and weighing
various factors, and then doing what seems most fair under the circumstances.”); Simone
H. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 320 P.3d 284, 287
n.8 (Alaska 2014) (quoting Booth approvingly).
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B. The Trial Court’s Property Distribution
Having clarified the standards the trial court should use when distributing
property acquired during a domestic partnership, we now evaluate the trial court’s
property distribution in light of these standards. We conclude that, although most of the
distribution is proper, certain aspects are in error.
1. The trial court did not clearly err by finding that the domestic
partnership ended in 2012.
The first step is to determine when the partnership began and ended. The
trial court found that “the parties intended to and engaged in an equal partnership that
they expected to continue indefinitely” and that “the domestic partnership did not end
until 2012 when . . . Anderson told . . . Tomal that she would no longer sleep under the
same roof.”21 The court also found that “[s]ince then, the parties became and remain
reluctant co-tenants.” This was not clearly erroneous.
We have emphasized that “simply living together is not sufficient to
demonstrate intent to share property as though married.”22 By early 2012 the parties had
separate finances and filed separate tax returns; they had not filed a joint tax return at
least since 2005.23 They lived separately, whether in different places or different parts
of the same property. Although sometimes living together at the Zimovia property, each
cooked their own meals, did their own laundry, and engaged in separate employment.
21
The trial court found that the partnership began in 1998, and the parties
have not asked us to review that finding; we thus accept for purposes of this appeal that
the domestic partnership began in 1998.
22
Boulds, 323 P.3d at 64.
23
See Bishop, 54 P.3d at 811 (factors 1 (“made joint financial arrangements
such as joint savings or checking accounts, or jointly titled property”) and 2 (“filed joint
tax returns”)).
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And, although after 2012 the parties continued to live at, maintain, improve, and hold the
debt on the Zimovia property together,24 this behavior is as consistent with a domestic
partnership as with the trial court’s conclusion that “[s]ince then, the parties became and
remain reluctant co-tenants.” We therefore cannot say the court clearly erred in finding
the domestic partnership terminated in 2012; we have no definite and firm conviction
that a mistake has been made.25
Anderson counters that domestic partnerships are a type of contract and that
she and Tomal did not intend for their contract to terminate when their relationship did.
But Anderson confuses the legal basis for distributing domestic partnership property with
the domestic partnership itself. A domestic partnership in Alaska is a marriage-like
relationship between unmarried cohabitants, not a contract. We explained in Tolan v.
Kimball that domestic partnership property distribution applies even if “the essential
elements of a contract were not present.”26 And, although Anderson and Tomal
undoubtedly could have made a contract to control their property distribution over any
other intent,27 Anderson did not claim in the trial court that such a contract existed. It
was therefore appropriate for the court to divide Anderson and Tomal’s property based
on the date it found the partnership terminated, and we affirm the court’s selected date
as not clearly erroneous.
24
See id. (factors 1 (“jointly titled property”), 5 (“contributed to the
improvement and maintenance of the disputed property”) and 8 (“incurred joint debts”)).
25
See supra note 8.
26
33 P.3d 1152, 1154 n.4 (Alaska 2001).
27
See supra note 9 and accompanying text.
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2. It was error to classify certain property as partnership
property.
The second step in distributing property acquired during a domestic
partnership is to classify the property based on statute, contract, or the parties’ intent.
Tomal argues that the trial court erred by allocating a portion of his pension to the
partnership because there was no evidence that the parties intended to share the pension.
Anderson argues that the trial court erred by classifying Tomal’s boat as his separate
property and by classifying her truck as partnership property.
Tomal is correct that the trial court did not make specific findings on the
parties’ intent for the pension. But “[i]n some cases, the parties’ intent with respect to
all or broad classes of property will be easy to infer based on evidence that ‘the parties
formed a domestic partnership and intended to share in the fruits of their relationship as
though married.’ ”28 “[W]hen the parties have demonstrated through their actions that
they intend to share their property in a marriage-like relationship, a court does not need
to find specific intent by each cohabitant as to each piece of property.”29 Tomal’s
argument that there was no specific evidence of intent to share the pension is therefore
misplaced. The trial court found that the parties “intended to and engaged in an equal
partnership that they expected to continue indefinitely.” The court also found that an
“equal division of the assets [was] appropriate.” The court made these findings in
conformity with our case law and the evidence at trial. The court did not clearly err by
finding that the parties intended to share the pension as part of their broad intent to share
property acquired during the partnership, and it thus did not err by classifying only the
portion of the pension accumulated during the partnership as partnership property.
28
Boulds v. Nielsen, 323 P.3d 58, 64 (Alaska 2014) (quoting Reed v. Parrish,
286 P.3d 1054, 1057 (Alaska 2012)).
29
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As to Tomal’s boat, he consistently testified that he bought the boat in
2012, and the court could have reasonably credited that testimony. The court did not
clearly err by implicitly finding that Tomal acquired the boat after the parties’ separation.
Anderson challenges this conclusion by arguing that “the record clearly evinces that . . .
Tomal used [partnership] funds” to buy the boat and that therefore either the funds he
withdrew from the partnership must be restored or the boat must be classified as
partnership property. But the record does not require such an inference. Tomal testified
that he paid for the boat from his personal bank account after the parties’ finances were
separated, and, contrary to Anderson’s argument, his accounting expert reported that the
pension funds he withdrew before the separation were used to pay partnership expenses.
The court could have reasonably credited this evidence to find that Tomal bought the
boat with his own funds, and the court therefore did not err by classifying the boat as
separate property.
We take a different view of Anderson’s truck. The only evidence on this
issue presented at trial reflects that Anderson acquired her truck after the domestic
partnership had terminated. It was clearly erroneous to implicitly find that Anderson
acquired the truck before the separation, as nothing in the record supports that finding.
It was therefore error to classify the truck as partnership property.
3. It was clear error to value the excavator at less than fair market
value.
The third step is to value the property. Anderson argues that the trial court
clearly erred by valuing an excavator at $1,000 when Tomal testified that a neighbor
offered to pay $6,000 for it.
We agree with Anderson that it was clear error to value the excavator at
$1,000 given this record. We have explained in the analogous divorce context that “[i]n
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valuing a marital asset, the court should look to the asset’s fair market value.”30 The
same rule applies here. Tomal testified that he paid $1,000 for the excavator and that it
had several problems needing repair before it could be sold. But he also testified that a
neighbor offered to pay him $6,000 for the excavator without any further repairs. Given
the lack of any other testimony about what a willing buyer would pay, $6,000 was the
best fair market value evidence in the record.31 It was clear error for the trial court to
value the excavator at $1,000.
4. The trial court did not abuse its discretion by requiring an
equalization payment.
The final step is to distribute the property by allocating the assets and, if
necessary, requiring an equalization payment. Tomal argues that the trial court erred in
this process because it ordered an equalization payment and thus effectively ordered him
to cash out his pension. Tomal argues that the parties did not intend for him to cash out
his pension and that such intent was necessary before the trial court could order him to
do so.
We reject Tomal’s argument because he misunderstands the basis for the
trial court’s order. The court did not require Tomal to cash out his pension; instead the
court explicitly wrote: “Tomal can certainly use his retirement funds to pay
30
Doyle v. Doyle, 815 P.2d 366, 369 (Alaska 1991) (alteration in original)
(quoting Nelson v. Jones, 781 P.2d 964, 970 (Alaska 1989)).
31
Cf. id. at 370 n.6 (“[F]air market value is a single, unitary figure, commonly
defined as ‘[t]he amount at which property would change hands, between a willing buyer
and a willing seller, neither being under compulsion to buy or sell and both having
reasonable knowledge of the relevant facts.’ ” (quoting Fair Market Value, BLACK’S
LAW DICTIONARY (6th ed. 1990))); see also Value, Fair Market Value, BLACK’S LAW
DICTIONARY (10th ed. 2014) (“The price that a seller is willing to accept and a buyer is
willing to pay on the open market and in an arm’s-length transaction; the point at which
supply and demand intersect.”).
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. . . Anderson, but I leave it to him to determine whether to use those funds, take out
another loan or find some other source of funds.” This was an appropriate course of
action. As we noted in Boulds v. Nielsen, “the court may require an equalization
payment from [the pension-holding partner] to [the other partner] reflecting the present
value of her share of the . . . pension.”32 The court did not lack authority to order an
equalization payment as part of its property division, and Tomal has not argued on
appeal that the equalization payment amount will cause him undue hardship.33 We
therefore must conclude that the trial court did not abuse its discretion by ordering the
equalization payment.
C. Post-Separation Property Expenses
We held in Wood v. Collins that “the rules of cotenancy apply after
separation when the parties [are] no longer maintaining a domestic relationship.”34 We
applied this rule in Wood to hold that a domestic partner who paid all of the property-
related expenses for property held by both partners could receive reimbursement for half
of those payments post-separation.35 Tomal argues that under this rule he is entitled to
credit for half of the Zimovia property payments he made post-separation.
32
323 P.3d at 65 n.37.
33
Cf. Fortson v. Fortson, 131 P.3d 451, 459 (Alaska 2006) (stating in divorce
context that “[c]ash awards are a permissible means of dividing illiquid marital assets
where they would not impose a hardship on the paying party” (emphasis added)).
34
812 P.2d 951, 958 (Alaska 1991).
35
Id.-16- 7282
We take this opportunity to clarify the legal standard for such
reimbursement, known as “contribution.”36 “As a general rule, each tenant in common
is responsible and ultimately liable for his or her share of all the necessary expenses
incurred maintaining and preserving the common property in proportion to his or her
ownership interest.”37 When one tenant pays all of the property expenses, that tenant
may receive contribution from the other tenants proportionate to the tenants’ shares in
the home.38
A tenant’s right to contribution, however, is not unlimited. “The situations
in which contribution for upkeep or repairs is not allowed are generally ouster, the
existence of an agreement to the contrary, a property division in a marital dissolution
case, and where the result would be inequitable.”39 Though we have never explicitly
stated that contribution is an equitable right, our past cases on this issue have intimated
as much. In Wood we affirmed the trial court’s decision to award contribution based on
“fairness” — i.e., equity.40 And in Reed v. Parrish we held that the superior court did
not abuse its discretion by declining to credit a paying partner with half the post­
36
See 86 C.J.S. Tenancy in Common § 90 (2018).
37
Id. (footnotes omitted); see also Wood, 812 P.2d at 958 (“Here, [the paying
partner] has made all the payments on the condominium from the time of separation.
Hence, [the nonpaying partner] must reimburse [the paying partner] for [the nonpaying
partner’s] share of the post-separation payments.”).
38
See Wood, 812 P.2d at 958.
39
86 C.J.S. § 90 supra note 36 (emphasis added).
40
812 P.2d at 957-58. We also explicitly stated in Wood, referring to
renovations, not necessary upkeep, that the “right to reimbursement” — a comparable
right to contribution, see 86 C.J.S. § 92 supra note 36 — is “an equitable right and
recovery should be just and equitable under all the circumstances.” 812 P.2d at 959.
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separation payments.41 We predominantly analyzed the post-separation payments in
Reed — ordered by the court as part of a domestic violence protective order — as
necessary relief to protect the domestic violence victim, but we then explained:
Further, the post-separation mortgage payments maintained
the status quo, ensuring that the children’s stability was
maximized while the parties litigated their dispute. The
parties had long structured their relationship with [the non­
paying partner] staying home to raise the children. To disrupt
that arrangement during the pendency of the court hearing
would have been unfair to the children and was contrary to
the intent of the parties.[42]
Such language reflects that whether to award contribution to a paying partner is within
the discretion of the trial court and can largely depend on equitable factors, rather than
rigid legal obligations. We therefore conclude that a tenant-in-common who pays more
than a proportionate share of property expenses may be denied contribution if
contribution would be inequitable.43 We will review the trial court’s decision to deny
contribution on equitable grounds for abuse of discretion.44
41
286 P.3d 1054, 1058 (Alaska 2012).
42
Id. at 1058-59.
43
We note that other jurisdictions have long treated contribution as an
equitable, rather than legal, right. See, e.g., Palanza v. Lufkin, 804 A.2d 1141, 1145 (Me.
2002) (describing contribution as equitable), abrogated on other grounds by Wicks v.
Conroy, 77 A.3d 479, 484 (Me. 2013); Caccamise v. Caccamise, 747 A.2d 221, 231-32
(Md. Spec. App. 2000) (same); Strohm v. Koepke, 90 N.W.2d 495, 497 (Mich. 1958)
(same); Cleys v. Cleys, 363 N.W.2d 65, 71 (Minn. App. 1985) (same); Capital Fin. Co.
of Del. Valley v. Asterbadi, 942 A.2d 21, 28 (N.J. App. Div. 2008) (same); Clute v. Clute,
90 N.E. 988, 990 (N.Y. 1910) (same); Tisdale v. Tisdale, 34 Tenn. 596, 599 (1855)
(same).
44
Cf. Cook v. Cook, 249 P.3d 1070, 1082-83 (Alaska 2011) (“[W]e review
(continued...)
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After hearing all the evidence and fashioning a property distribution in light
of our domestic partnership case law, the trial court in this case determined that an award
of post-separation property expense payments would not be appropriate. The court
found that “as cotenants, [the parties] continued to both contribute to the household in
roughly equal fashion with . . . Tomal making the necessary payments to maintain the
household and . . . Anderson doing other regular maintenance and upkeep.” Tomal has
not challenged this finding on appeal, instead arguing that the trial court impermissibly
offset his payments against Anderson’s labor. But the issue is not “offsetting”; the issue
is whether ordering Anderson to pay Tomal contribution would have been equitable
under the circumstances. The trial court concluded that it would not have been, and its
findings reflect that Anderson reasonably could have believed that Tomal did not expect
her to pay for half of the property expenses while she continued maintaining the
property. We cannot say that it was an abuse of discretion to decline to credit Tomal for
post-separation property expense payments.
D. Attorney’s Fees And Costs
Tomal argues that the trial court erred by declining to award him prevailing
party attorney’s fees under Alaska Civil Rule 82. Tomal argues that the court erred by
applying the divorce exception to this case to award Anderson minimal costs in lieu of
awarding either party prevailing party attorney’s fees. Tomal also argues that he should
have been awarded fees even if the divorce exception were applied.
“Attorney’s fees in divorce cases are ‘based on the relative economic
situations and earning powers of the parties,’ rather than prevailing party status.”45 This
44
(...continued)
a trial court’s decision on equitable relief for abuse of discretion.”).
45
Sanders v. Barth, 12 P.3d 766, 768 (Alaska 2000) (quoting Kowalski v.
(continued...)
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divorce exception also extends to actions between domestic partners, but it “is not
intended to apply to every child support [or property division] case between unmarried
couples.”46 Instead the divorce exception is “reserved for cases that closely resemble
divorce actions and for cases that involve disputes — such as disputes about custody or
the initial division of property — for which it is of paramount importance that the parties
be able to litigate on a ‘fairly equal plane.’ ”47 We have previously applied the divorce
exception to cases involving unmarried parents litigating child custody and support.48
But we have not applied the divorce exception to a case between unmarried couples
deciding only property issues.49 We must therefore decide whether this case “closely
resemble[s]” a divorce action such that the divorce exception to Rule 82 applies;50 this
is a “determination of which statute or rule applies to an award of attorney’s fees . . . that
we review de novo.”51
45
(...continued)
Kowalski, 806 P.2d 1368, 1372 (Alaska 1991)).
46
Id. at 769.
47
Id. (quoting Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987)).
48
See, e.g., Koller v. Reft, 71 P.3d 800, 809 (Alaska 2003); Bergstrom v.
Lindback, 779 P.2d 1235, 1238 (Alaska 1989).
49
Previous appeals between domestic partners have had Rule 82 attorney’s
fees at issue, but, apparently, no party raised the divorce exception’s applicability. See,
e.g., Wood v. Collins, 812 P.2d 951, 957 (Alaska 1991); Levar v. Elkins, 604 P.2d 602,
604 (Alaska 1980). We once upheld Rule 82 attorney’s fees in a domestic partnership
property division over an argument that the divorce exception should apply, but we did
so without any detailed analysis. Bishop v. Clark, 54 P.3d 804, 814 (Alaska 2002).
50
See Sanders, 12 P.3d at 769.
51
Koller, 71 P.3d at 808.
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“The purpose of [the divorce exception] is to ensure the parties can litigate
on a ‘fairly equal plane.’ ”52 This rationale applies to domestic partnership property
division immediately after a break-up as much as it does to child support in the same
time period. If one person has relied on a partner to provide income for the couple’s way
of life, that person’s inability to “litigate on a fairly equal plane” could result in severe
hardship during litigation; such hardship could potentially extend indefinitely if the
property division does not adequately protect the economically disadvantaged partner.
We cannot rationally conclude that the absence of a child support or child custody
dispute makes the divorce exception per se inapplicable. We therefore hold that the trial
court may appropriately apply the divorce exception to cases involving “the initial
division of property” after “the break-up of the long-term relationship.”53
Tomal argues that this case is not an “initial division of property” because
the parties separated in 2012 and litigation did not begin until 2016.54 But this case
differs from past domestic partnership disputes we have resolved because in most cases
the partners stopped living together after the domestic partnership terminated. Here
Tomal and Anderson continued living together on the Zimovia property after the
partnership terminated, sharing land and personal property, thus making the trial court’s
property division the “initial division of property” of the partnership assets within the
52
Osterkamp v. Stiles, 235 P.3d 178, 192 (Alaska 2010) (quoting Sanders, 12
P.3d at 769).
53
See Sanders, 12 P.3d at 769. We therefore disavow our approval of using
Rule 82 in this context in Bishop, 54 P.3d at 814. See supra note 49.
54
Cf. id. (explaining that most “quasi-divorce cases between unmarried
couples occur almost immediately after the break-up of the long-term relationship” and
concluding that the divorce exception should not apply to a child support dispute
occurring more than ten years after the break-up).
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scope of the divorce exception. Though some years elapsed between the partnership’s
end and litigation beginning, it was no less important that the parties “litigate on a fairly
equal plane” in 2016 than it would have been in 2012. We therefore conclude that the
trial court did not err by applying the divorce exception.
We last consider Tomal’s argument that, even applying the divorce
exception, he should have been awarded attorney’s fees. “The award of attorney’s fees
in a divorce action . . . rests within the broad discretion of the trial court and will not be
disturbed on appeal unless it is ‘arbitrary, capricious, or manifestly unreasonable.’ ”55
The trial court found that Anderson was the economically disadvantaged party and that
she should receive “her fixed and reasonable” costs of just over $500. This award was
not “manifestly unreasonable.”56 Though Tomal is older than Anderson and is taking on
a larger share of the partnership’s debt, he also is retaining the Zimovia property, can rely
on his pension in the future, and earns substantially more income than Anderson. In light
of these factors the court did not abuse its discretion by granting Anderson the relatively
modest award of $500 in costs, especially considering she received nothing in attorney’s
fees.57
55
Ferguson v. Ferguson, 195 P.3d 127, 130 (Alaska 2008) (quoting Hopper
v. Hopper, 171 P.3d 124, 129 (Alaska 2007)). The parties in Ferguson were divorced,
but the relevant standard of review does not change between divorce cases applying the
divorce exception and domestic partnership cases applying the divorce exception. See
Koller, 71 P.3d at 808 (reviewing final attorney’s fees award under divorce exception for
abuse of discretion); Osterkamp, 235 P.3d at 192 (reviewing interim attorney’s fees
award under divorce exception for abuse of discretion); Bishop, 54 P.3d at 814
(reviewing interim attorney’s fees award under divorce exception for abuse of
discretion).
56
See Ferguson, 195 P.3d at 130 (quoting Hopper, 171 P.3d at 129).
57
Cf. Osterkamp, 235 P.3d at 192 (concluding trial court did not abuse its
(continued...)
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IV. CONCLUSION
Except as otherwise noted, we AFFIRM the trial court’s rulings. We
REMAND for the trial court to recalculate the equalization payment in light of our
opinion. We do not retain jurisdiction.
57
(...continued)
discretion when it awarded $5,000 in interim attorney’s fees, after “consider[ing] the
parties’ respective incomes and other sources of equity, including [the non-awarded
partner’s] continued possession of the house, the parties’ sole significant asset”).
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